The Center News: December 2014

A Publication of the National Association of ManufacturerstheCenter for Legal Action

Center Perspectives

By Patrick Forrest, Vice President, Litigation, and Deputy General Counsel

Last week, the National Labor Relations Board (NLRB) made organizing a union much easier. On December 11, the Board ruled in Purple Communications, Inc. that employees have the right to use work email for organizing activities during nonworking time. The very next day, it issued its final rule on ambush elections, which stipulates that elections can now occur within 15 days from the date an organizing petition is filed. Shortening the period before an election denies employees the time required to gather needed facts and make an informed decision.

The ambush elections rule also ties employers’ hands by eliminating their right to challenge voter eligibility and other issues prior to the election. Further, it limits NLRB review to only disputes raised by a party prior to the election. The rule also disregards employee privacy. Under the rule, employers are required to turn over their workers’ sensitive personal contact information—without the employees’ consent—to the union to advance union organizing campaigns.

It is clear the Board intends to uproot longstanding and effective labor policies and has positioned itself to advance union organizing at the expense of employee rights and due process. The National Association of Manufacturers (NAM) is examining the possibility of a lawsuit challenging the ambush elections rule. Additional information regarding a possible lawsuit is forthcoming.

MCLA in the Courts

Administrative Law

Manufacturers Urge Openness and Transparency on Regulatory Actions: The NAM filed a brief in Perez v. Mortgage Bankers Association, a case heard by the Supreme Court in early December. This case will have a significant impact on whether a federal agency must engage in notice-and-comment rulemaking pursuant to the Administrative Procedure Act before it can significantly alter a rule that articulates an interpretation of a regulation.

More Information: Perez v. Mortgage Bankers Association (U.S. Supreme Court)

Civil Procedure

High Court Turns Down Case on the Exclusion of Unreliable Expert Testimony: The Supreme Court turned down an NAM-supported appeal of a case focusing on a court’s responsibility to act as a “gatekeeper” and properly exclude unreliable expert testimony.

More Information: SQM North America Corporation v. City of Pomona (U.S. Supreme Court)

Conflict Minerals

Appeals Court To Take Another Look at Manufacturers’ Challenge to Conflict Minerals Rule: At the request of the Securities and Exchange Commission (SEC), a federal appeals court will review manufacturers’ successful challenge to the conflict minerals rule. The NAM will urge the court to uphold our victory, and in the meantime, this appeal does not change the status of SEC filing requirements currently in effect.

More Information: National Association of Manufacturers v. SEC (U.S. Court of Appeals for the D.C. Circuit)

E-Mail Search Warrant

Email Search Case Concerns Manufacturers: The NAM filed a brief in response to a lower court decision that the government can use a search warrant issued under the Stored Communications Act to gain access to digital information within the control of a U.S.-based Internet service provider but stored on a foreign server. If allowed to stand, this case will have an immediate chilling effect on the ability of U.S. companies to compete internationally.

More Information: In the Matter of a Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corporation (U.S. Court of Appeals for the 2nd Circuit)


High Court Denies Review of “Public Trust” Litigation: Closing the final chapter in a particularly aggressive effort by environmentalists to use the courts to mandate greenhouse gas (GHG) reductions, the Supreme Court refused to hear a lawsuit urging GHG limits under a “public trust” theory. The lawsuit raised issues under federal common law similar to those largely thrown out by state courts and regulatory agencies under state law.

More Information: Alec L. v. McCarthy (U.S. Supreme Court)

Court Strikes Blow to Settlement Agreements: The Supreme Court refused to hear an appeal of a decision upholding a settlement that awarded money to parties that had no injuries attributable to the Deepwater Horizon oil spill.

More Information: BP Exploration & Prod. Inc. v. Lake Eugenie Land & Dev., Inc. (U.S. Supreme Court)

NAM Weighs in on Two Clean Air Act Preemption Cases: The NAM filed a brief in a Merrick v. Diageo Americas Supply, which involves emissions from a whiskey production facility. The case considers whether the Clean Air Act preempts state common law nuisance claims when a manufacturing facility is properly operating under federal or state emissions permits.

The NAM also filed a brief in Grain Processing Corp. v. Freeman. The Supreme Court denied review of this case in which the NAM argued that state common law nuisance actions arising from emissions from manufacturing plants are preempted by the Clean Air Act.

More Information: Merrick v. Diageo Americas Supply, Inc. (U.S. Court of Appeals for the 6th Circuit);
Grain Processing Corp. v. Freeman
(U.S. Supreme Court)

Manufacturers Support Challenge to New Round of Greenhouse Gas Regulations for Utilities: The NAM filed a brief in a case challenging a settlement agreement that committed the Environmental Protection Agency to propose limits on greenhouse gases from power plants. Our brief contends that the rules violate express language in the Clean Air Act that prohibits double regulation of utilities.

More Information: West Virginia v. EPA (U.S. Court of Appeals for the D.C. Circuit)

GMO Labeling Law

Challenge to Vermont GMO Law Now Before Federal Judge: Manufacturers’ challenge to Vermont’s law that requires labeling of foods with genetically engineered ingredients is now before a federal district court judge, who will consider Vermont’s motion to dismiss the case. The court will hear oral arguments on January 7, 2015.

More Information: Grocery Manufacturers Assn. v. Sorrell (U.S. District Court for Vermont)

Labor Law

Supreme Court Delivers Win for Manufacturers in Security Screening Case: The Supreme Court unanimously reinforced arguments asserted by the NAM and coalition associations in a case involving whether time spent undergoing security checks is compensable. The high court decided that the Fair Labor Standards Act does not require employers to compensate employees for the time spent on security checks before and after work. This decision provides clarity to the ever-increasing number of businesses that use security screenings

More Information: Integrity Staffing Solutions, Inc. v. Busk (U.S. Supreme Court)

Labor Board Overturns Precedent on Union-Related Communications: The NLRB recently reversed an earlier decision and concluded that employees may use email for union-related communications during nonworking time.

More Information: In re. Purple Communications, Inc. (NLRB)

Product Liability

Manufacturers Press Need for Proof of Causation in Toxic Tort Cases: On November 28, the Louisiana Supreme Court declined to review a case involving the need to prove causation in a toxic tort case. Manufacturers had urged the court to accept the appeal.

More Information: Anthony v. Georgia Gulf Lake Charles LLC (Louisiana Supreme Court)

Punitive Damages

Court Throws Out Award of Multiple Punitive Damages: On December 9, the Louisiana Supreme Court threw out a $10 million punitive damages award that had been given to a worker who filed two cases against a company. The first case resulted in a verdict that punitive damages were unwarranted, and the court ruled that a second jury could not decide the issue again.

More Information: Oleszkowicz v. ExxonMobil Corp. (Louisiana Supreme Court)

Other News

American Tort Reform Association Issues Annual Report on Judicial Abuses: The American Tort Reform Association released its annual Judicial Hellholes report, which names America’s worst civil litigation forums. This year, there is a new number one: New York City asbestos litigation. The NAM has noticed—and acted on—the troubling trend in the Empire State.

Questions or Comments?

Contact Senior Vice President & General Counsel Linda Kelly at lkelly@nam.

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